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Donald Trump

Special counsel Robert Mueller is now investigating whether Donald Trump's conduct toward former FBI Director James Comey constituted obstruction of justice.

Comey made that pretty clear on Thursday during his testimony to the Senate Intelligence Committee. "I don't think it's for me to say whether the conversation I had with the president was an effort to obstruct," he said. "That's a conclusion I'm sure the special counsel will work towards to try and understand what the intention was there, and whether that's an offense."

What is less clear is how enthusiastically Mueller, whose mandate is to investigate the wider issue of Russian interference with the 2016 presidential election, will explore that particular topic – and, if he reaches the conclusion that Trump did indeed obstruct justice, what he can do about it.

On Friday afternoon at a press conference, Trump accused Comey of lying about their conversations and, in an unwitting endorsement of Mueller's investigation, said he would be "100 percent" willing to be deposed by Mueller under oath.

"I would be glad to tell him exactly what I just told you," Trump said, raising the possibility that he could end up being accused of perjury as well as obstruction of justice.

At the American Constitution Society (ACS) convention, running from Thursday through Saturday, top progressive lawyers said Trump's behavior certainly appears to constitute obstruction. They said they hope Mueller investigates Trump's conduct vigorously, with plenty of subpoenas and interviews.

"I think certainly the role of the president in an effort to potentially obstruct the investigation is a critical part of any investigation about Russian efforts to influence the election," ACS President Caroline Fredrickson said.

At your dinner with President Trump on Jan. 27, did he ask you to pledge your loyalty to him? How did he phrase it? How did you interpret that request? Did he clarify? Did he ask you anything about the ongoing investigation into Russian interference with the election? Did he ask you if he or any of his campaign aides were under investigation? Did you feel like this was a job interview, with your job at stake?

Your Feb. 14 meeting with Trump took place just a day after Michael Flynn was forced out his job as national security adviser for having lied about his contacts with Russian officials. According to media reports, you recall Trump telling you: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Did you interpret that as a request to end your investigation? Why? Did you feel like your job was at stake?

Trump fired you on May 9. One day earlier, Sally Yates, who he had earlier fired as acting attorney general, made the first public indication that the FBI's counterintelligence investigation had in fact uncovered evidence of collusion between the Trump campaign and Russian intelligence. (Asked to rule it out at a Senate Judiciary subcommittee hearing, she said instead: "My answer to that question would require me to reveal classified information.") Did you interpret your firing as an attempt to end the investigation, or punish you for not having stopped it? Why?

These are just some of the essential questions members of the Senate Intelligence Committee need to ask former FBI Director James Comey on Thursday – unless, having already seen the memos he used to memorialize the conversations he had with Trump, they have even better ones.

But these questions go directly to whether Trump is guilty of obstruction of justice.

by Douglas NeJaime, ACS Board of Academic Advisors, Professor of Law and Faculty Director, Williams Institute, UCLA School of Law and Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School.

Religious exemptions from laws that require doctors to care for patients, employers to pay employees, or store owners to deal with customers in a respectful and nondiscriminatory way can hurt and demean citizens who do not share the claimant’s religious beliefs. Exemption claims of this kind are now spreading under the banner of religious liberty in the culture wars.

Today, some conservatives are advancing expansive religious exemption claims to stigmatize contraception and restrict women’s access to it. Contraception is “the new abortion.” There are religious conservatives who call certain contraceptive methods “abortifacients,” even in cases where evidence shows that the methods do not operate in ways that satisfy their religious definition of abortifacients. Others oppose all methods of contraception as encouraging “a contraceptive mentality” that separates sex and reproduction.

These claims about contraception are connected not only to abortion but also to same-sex marriage. As we documented in our 2015 Yale Law Journal article, “Conscience Wars,” many religious conservatives object to contraception, abortion, and same-sex marriage in part because they divert sex and marriage from procreative ends.

Yesterday we learned that the Trump Organization has deemed it “impractical” to identify all payments that its hotels receive from foreign governments. Instead of asking guests a few simple questions, the Trump Organization will rely on estimates and assumptions about payments from foreign powers at its properties. It will use those figures—in unclear ways—to calculate total profits from foreign governments. And from time to time, it will write a check for this amount to the U.S. Treasury.

If the Trump Organization thinks that will solve Trump’s breach of the Foreign Emoluments Clause, it is mistaken. This plan responds to only a fraction of Trump’s emoluments and presents (those given by foreign powers to Trump through hotel rentals). And it is inadequate as a safeguard against emolument violations even in that limited context. The Constitution requires that Trump actually stop receiving foreign presents and emoluments, not that he forge an appearance of avoiding some of them.

The scope and danger of Trump’s constitutional violations are, by now, well known. Yet even with advance warning and the best lawyers his money can buy, Trump has never fielded a good defense to claims that he is violating the Foreign Emoluments Clause. In fairness to his lawyers, that is because there is not a good defense to be had: he is violating the Clause in nearly every conceivable way (short of accepting an office in Vladimir Putin’s government).

For the second time within the span of week, Trump’s immigration ban 2.0 headed to a federal appeals court. On Monday, the Ninth Circuit heard the government’s appeal from district court’s issuance of an injunction in Hawaii v. Trump. The three-judge panel vigorously questioned both Acting Solicitor General Jeffrey Wall and counsel for Hawaii, Neal Katyal. The argument showcased some of the best oral advocacy thus far on the immigration ban executive order (EO), and featured several marquis moments that are sure to garner extended commentary. The range of topics explored by the Ninth Circuit panel were similar to the other cases challenging the EO: The proper level of judicial review; whether any plaintiffs have standing, and if so, what aspects of the EO their standing allows them to contest; whether the district court’s injunction was proper in scope; and, of course, whether and to what extent a court should consider Trump’s campaign and post-election statements in evaluating religious animus.

My goal here is not to comprehensively discuss all important questions covered in the oral argument, rehash the voluminous legal commentary already available about the EO, or to make predictions about the panel opinion. Here, I highlight three moments, among the many, that stood out to me as notable inflection points. The first exchange concerns the issue of statutory analysis, the second with the limits of religious animus, and the third with the historical legacy of this ruling.